Employment Law Case Update - July 2014

Burnetts' team of employment law solicitors examine the latest case law developments.

Does the Disclosure of Spent Convictions Interfere with Human Rights?

Following on from the recent changes to the Rehabilitation of Offenders Act that came into force in March 2014 (see 'changes to rehabilitation periods', there comes an interesting case from the Supreme Court to do with whether the disclosure of spent convictions interferes with Article 8 of the European Convention of Human Rights (“Article 8”) - the right to a private life.

The question that the Supreme Court considered in R (on the application of T) v Secretary of State was whether the obligatory disclosure of spent convictions for specified professions or persons working with children and vulnerable adults was a necessary and proportionate interference with their right to a private life under Article 8. The case referred back to the old version of the Rehabilitation of Offenders Act 1974 and the exceptions to that Act whereby certain professional bodies and employers are permitted to request enhanced disclosure which disclose every “relevant matter” on the Police national computer, revealing all spent convictions, no matter how old or how minor.

In relation to T, he was aged 11 when he was given a warning by Police for stealing two bicycles. Like a caution issued to an adult, a warning to a child can be given only following his admission of guilt. T had no other criminal record. In 2010 T applied for enrolment on a sports study course, which was to entail contact with children. The College required him to obtain an Enhanced Criminal Record Certificate. This disclosed the warning and the College put his place on the course at risk. It was only as a result of representations by his solicitor that the College accepted T for enrolment on the course notwithstanding the warning.

In relation to the second individual, JB was aged 41 when she was issued with a caution for theft from a shop of a packet of false finger nails. She had no other criminal record. Eight years later she completed a training course arranged by the Job Centre for employment in the care sector. The provider of the course asked her to obtain an Enhanced Criminal Record Certificate which disclosed the caution. The training provider then felt unable to put her forward for employment in the care sector.

The Supreme Court has held that the requirement to give such disclosures was an interference with respect to private life under Article 8. The majority of the Supreme Court found that the interference was not justified and was therefore unlawful. It was significant that they felt that there were no safeguards against arbitrary disclosure of personal information. The Supreme Court also held that the interference was not necessary in a democratic society which echoes the Home Secretary’s own words that the criminal records system should be scaled back to “common sense levels”.

This highlights to employers that convictions that are revealed on an Enhanced Criminal Record Certificate need to be considered in the particular circumstances of the job, the particular circumstances of the type of conviction, for what it was given, the person’s age at the time of the conviction and all other relevant circumstances before any decision is made as to whether or not that individual is suitable for employment.

Employers with concerns about convictions which have been disclosed should contact Natalie Ruane at Burnetts Solicitors on 01228 552222 for further advice.

The Dangers of Standard References

We have mentioned in previous bulletins the problems that employers can run into if they provide what an ex-employee considers to be a misleading or inaccurate reference.
With that case law in mind, many of the employers that we work with have adopted the policy of providing standard factual references only. AB v a Chief Constable is a recent case which highlights the problem that employers might face when they feel that the standard factual reference is itself misleading.

AB was a senior police officer with more than 20 years’ service. In 2009, he had been disciplined for misconduct and had been issued with a final written warning. In 2011 further allegations of gross misconduct were made. An investigation took place at the end of which AB was invited to a disciplinary hearing. That hearing was delayed due to AB’s ill health. Just as AB was due to return to work, he spoke to someone in human resources about the impact of the investigation on any reference. AB was told that, because no decision had been made in relation to the disciplinary matter, he would be given a standard factual reference confirming his post and length of service but without reference to the investigation. With that in mind, AB resigned before the hearing could take place. AB was told that, in light of his imminent departure, the disciplinary process would be dropped.

A few days after the factual reference had been sent out, the Chief Constable found out and decided that a second reference should be issued because, in failing to mention the disciplinary matters, the Chief Constable felt that the reference that had been given had been misleading. The Chief Constable wrote to AB advising him of what he intended to do. AB then applied to the Civil Courts to prevent the Chief Constable from disclosing that second reference.

The Civil Court agreed that the first reference was inadequate, that it was misleading and that it was not fair to the new employer because the disciplinary matters had not been mentioned. The Court felt that although the allegations were unproven, this did not mean that they should be excluded from the reference. However, the Court pointed out that the Chief Constable was also subject to the provisions of the Data Protection Act 1998 (“the DPA”). Dealing with information fairly as required under the DPA involved, in the Court’s view, a balancing of the interests of the employee and the potential employer. On balance, the Court felt that the disclosure of the second reference including information about the disciplinary process was likely to result in AB losing his new job and that because AB had been specifically told that the factual reference was the only one that would be provided, it would cause greater harm to AB if the second reference was disclosed than would be suffered by the new employer in not knowing about the allegations particularly as the factual reference had included a disclaimer stating that the employer accepted no responsibility for the accuracy of the information in the reference.

The case reinforces that employers are under a duty to exercise reasonable skill and care to ensure that references are true, accurate and fair. However, the case also highlights that leaving information out of a reference can be as misleading as including it. The Court emphasised in this case that there are duties of care to both the party receiving the reference and the ex-employee who has been given the reference and that employers need to take care to strike the right balance.

We are often asked whether employers should include additional information when pro forma reference forms are received and what, if anything, should be said about employees who are under investigation. The answer as arising from this case is that it depends upon what, if anything, you have said to the employee about what will be included in the reference and what policies, if any, are in place governing what information will be given. Even if you have a policy of providing standard references, this case highlights the value of including a disclaimer within any reference given but also of adopting a policy that allows the inclusion of additional information in exceptional cases. If in doubt, take advice.

Natalie Ruane or any of the solicitors within the Burnetts’ Employment Team would be happy to assist you with this kind of query. They can be contacted on 01228 552222.